Common law

About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.

China's struggle for the rule of law

Abstract: Up until the late 1970s Chinese political and academic commentary routinely dismissed the ‘rule of law’ concept as ‘bourgeois’ propaganda, designed to discredit Chinese socialism and the Chinese justice system, and, even during the Chinese legal reform of the 1980s, Western commentary just as routinely presumed that any Chinese reference to ‘fazhi’ connoted ‘rule by law’ as opposed to the ‘rule of law’.1 In the Western perspective, ‘rule by law’ merely invoked the existence of law within the state’s governing process, while ‘rule of law’ implied more progressively the supremacy of law and the curtailment of arbitrary government by law.

The Judiciary and Economic Development

Abstract: No degree of substantive law improvement can bring the rule of law to a country without effective enforcement, and a sound judiciary is the key to enforcement. Judicial independence and the strength and efficiency of judiciaries are associated with economic growth. Some research finds legal formalism (that is, procedural complexity) undesirable. Though procedural complexity may be a barrier to judicial efficiency, it is also true that some procedural rules are designed to avoid legal error, also surely an aspect of efficiency. In any event, many of the measured differences in formalism between the common law and civil law are related to the far different role of counsel and judge in the two legal systems. Judicial efficiency measured in terms of duration of cases shows an extraordinarily wide variance among countries within individual legal families, suggesting that something at least as significant as legal origin may be involved. The related concepts of separation of powers and of checks and balances are not well-defined, and their meaning varies depending on the country and the objective of the constitutional founders. For economic development the constitutional provisions on review of administrative acts take on special importance. Judicial independence is not just a question of the structural independence of the judiciary within the governmental system, but also of the behavioral independence of individual judges. The latter is based both on law (for example, lifetime tenure) and on the method of appointment of the judiciary, but also on the education, economic security, and place in society of individual judges. Especially noteworthy in this regard is the traditional independence of English judges despite the absence of constitutional structural independence and of any power of judicial review.

Legal Ground Rules in Coordinated and Liberal Market Economies

Abstract: Two parallel literatures have explored differences across legal and economic systems,noting that countries can be loosely grouped into liberal vs. coordinated market economies on the one hand, and common law vs. civil law countries on the other. These two groups largely overlap. Liberal market economies (LMEs) tend to have a common law tradition, while coordinated market economies (CMEs) belong to the civil law family (French or German). This paper argues that this overlap is not coincidental. The link between legal and economic systems are social preferences reffected in basic norms, or ground rules, found in substantive and procedural laws of different countries. These ground rules are more pervasive than their specific incarnation, such as codetermination in Germany, or shareholder primacy in the United States. The paper develops a typology of ground rules, distinguishing between substantive ground rules that allocate decision making rights to either individuals or to the state/collective; and procedural ground rules that determine whether the individual or a collective (or the state) have the primary or exclusive power to seek judicial remedies. The paper uses examples from contract and corporate law to illustrate these ground rules focusing on German law, as an example for the civil law family and a CME, and the US as an example for a common law jurisdiction and LME. An important implication of this analysis is that each system is highly path dependent and that, therefore, marginal changes of specific incarnations of social preferences are unlikely to fundamentally alter the nature of each system.

International law and sustainable development : past achievements and future challenges

Abstract: 1. Introduction 2. Sustainable Development and Unsustainable Arguments 3. Sustainable Development: Treaty, Custom and the Cross-Fertilization of International Law 4. Codification of International Environmental Law and the International Law Commission: Injurious Consequences Revisited 5. Natural Resources in the Case Law of the International Court 6. The Development of the Legal Regime of High Seas Fisheries 7. International Fisheries Law Since Rio: The Continued Rise of the Precautionary Principle 8. Towards Long Term Sustainable Use: Some Recent Developments in the Legal Regime of Fisheries 9. Protection of Ecosystems under International Law: Lessons from Antarctica 10. Sustaining Small Cetaceans: A Preliminary Evaluation of the ASCOBANS and ACCOBAMS Agreements 11. The Settlement of Disputes According to the Straddling Stocks Agreement of 1995 12. The Law of the Sea Convention and Agenda 21: Marine Environment Implications 13. The International Legal Regime for Protection and Preservation of the Marine Environment from Land-based Sources of Pollution 14. Port States and Environmental Protection 15. Liability for Damage to the Marine Environment 16. The Challenge of Implementation: Some Concluding Notes

Into the Frying Pan: Standing and Privity under the Telecommunications Act of 1996 and Beyond

Abstract: Any legal system must make a trade-off between two components of optimal law enforcement. The first requires all persons injured by some wrongful conduct to recover full damages in order to create optimal incentives for primary conduct. The second requires some limit on the number of potential of wrongful suits arising out of wrongful conduct, in order to contain the administrative and error costs of legal enforcement. In most practical settings, the second of these concerns has proved more important than the former, which has led to the creation of a practical standing doctrine recognized in the Supreme Court's decisions in Illinois Brick (1977) and Holmes (1992). One component of standing is the so-called privity limitation, which limits suits to parties who are immediate purchasers from the wrongdoer. The privity limitation has applied to common law actions, and to statutory causes of action under both the general antitrust law and direct schemes of regulation. This paper explores the evolution and justifications for the privity doctrine, and then argues that the recent suits, such as Goldwasser (2000) and Trinko (2002) that have allowed indirect purchasers of telecommunications services to have standing against Local Exchange Carriers under the Sherman Act misread the relevant legal authority, and overlooks the important practical function of both standing and privity limitations.